United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) and Supplemental Security Income
(SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding error in the Administrative
Law Judge's (ALJ) hypothetical questioning of the
vocational expert, the court ORDERS that the decision shall
be REVERSED and that judgment shall be entered pursuant to
the fourth sentence of 42 U.S.C. § 405(g) REMANDING the
case for further proceedings consistent with this decision.
applied for DIB and SSI benefits, alleging disability
beginning January 1, 2011. (R. 20, 198, 202). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits.
Plaintiff argues that the Administrative Law Judge (ALJ)
erred in evaluating Plaintiff's condition under Listing
1.02 and provided an inadequate narrative discussion, that
the evidence does not support his credibility determination,
that he did not evaluate the medical opinions properly, and
that his hypothetical questioning of the vocational expert
did not relate with precision to the residual functional
capacity (RFC) assessed.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844
F.2d 748, 750 (10th Cir. 1988)). “If a determination
can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
she has a severe impairment(s), and whether the severity of
her impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's RFC. 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether, in
light of the RFC assessed, claimant can perform her past
relevant work; and at step five whether, when also
considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in
the economy. Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In steps one through four
the burden is on Plaintiff to prove a disability that
prevents performance of past relevant work. Blea v.
Barnhart, 466 F.3d 903, 907 (10th Cir. 2006);
accord, Dikeman v. Halter, 245 F.3d 1182,
1184 (10th Cir. 2001); Williams, 844 F.2d at 751
n.2. At step five, the burden shifts to the Commissioner to
show that there are jobs in the economy which are within the
RFC assessed. Id.; Haddock v. Apfel, 196
F.3d 1084, 1088 (10th Cir. 1999).
court finds that remand is necessary here because the
ALJ's hypothetical questioning of the vocational expert
did not include his finding that Plaintiff “is not able
to communicate in English, and is considered in the same way
as an individual who is illiterate in English.” (R. 27)
(finding no. 8). The court also notes that the ALJ here did
not provide extensive discussion which resolved the
ambiguities regarding his findings, and consequently there is
merit in other arguments made by the plaintiff. For example,
the ALJ did not explain how his finding that “there is
no indication that the [plaintiff] has an inability to
ambulate effectively, ” can be reconciled with his
finding that she is unable to climb ramps and
stairs. (R. 24). Moreover, the ALJ did not explain how the
inconsistencies (between Dr. Bean's statement that
Plaintiff's noncompliance with medication was related to
a lack of funds and Plaintiff's testimony that she was
compliant with medication, or any of the other evidentiary
inconsistencies) regarding Plaintiff's credibility would
provide a basis to discount Dr. Bean's medical
opinion. (R. 27). Because remand is clearly necessary to
correct the error regarding hypothetical questioning, the
court need not address the remaining allegations of error,
and it will not provide an advisory opinion with regard to
those issues. Nevertheless, the Commissioner should consider
Plaintiff's remaining arguments and take steps to
eliminate ambiguity in her decision after remand.
claims that although the ALJ found Plaintiff unable to
communicate in English, he did not include that fact in any
hypothetical scenario presented to the vocational expert.
(Pl. Br. 33). She argues that although a Spanish interpreter
was used at the hearing Plaintiff's ability to
communicate in English was never discussed, and even though
the vocational expert testified that the representative jobs
were suited to an individual who could not read or write
English, she did not testify that they can be performed by
someone who is unable to understand or speak English orally.
Commissioner argues that the hypothetical questioning
included all facts necessary to the decision. (Comm'r Br.
15). She points out that the ALJ specifically noted the use
of the interpreter and that the vocational expert was present
in the hearing room with Plaintiff and the interpreter.
Id. She argues that all of the representative jobs
mentioned are unskilled jobs and “the inability to
communicate in English ‘has the least significance'
in unskilled jobs.” Id. (quoting 20 C.F.R.,
Pt. 404, Subpt. P, App. 2 § 201.00(i)). She notes that
ability to communicate in English is an
“education” factor and the ALJ included in his
hypothetical scenarios an individual with education similar
to Plaintiff. Id. 15-16. Finally, she argues that
any error in failing to include inability to communicate in
English is harmless because all of the representative jobs
include math and language levels of one, and the vocational
expert testified that in such jobs “the need to
communicate through written form [was] minimal.”
Id. at 16 (quoting R. 66).
Reply Brief Plaintiff points out that even though the
vocational expert was aware of the interpreter at the
hearing, and the ALJ included a hypothetical person with
education similar to Plaintiff, there is no authority for the
expert to add limitations such as inability to communicate in
English based merely on her observation of the plaintiff at
the hearing. (Reply 9). Moreover, she points out that the
work summary prepared by the expert before the hearing
reflected a twelfth grade education, Plaintiff testified at
the hearing she completed the ninth grade, and there is
nothing from which the vocational expert should assume an
inability to communicate in English even if she had the
authority to do so. Id. at 9-10. Finally, she argues
that even though the expert testified that the representative
jobs required minimal communication in written form, the
inability to communicate includes verbal communication, and
the expert did not testify that the jobs did not require
verbal instructions or communication. (Reply 10).
elicited by hypothetical questions that do not relate with
precision all of a claimant's impairments cannot
constitute substantial evidence to support the
[Commissioner]'s decision.'” Gay v.
Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993) (citing
Hargis v. Sullivan, 945 F.2d ...